MegaConstitutional Politics.docx

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School

McGill University

Department

Political Science

Course

POLI 221

Professor

Christa Scholtz

Semester

Fall

Description

MegaConstitutional Politics
Lecture 1
November-13-12
10:04 AM
-What are the rules about changing the rules?
-How do we measure the success of an amending formula?
-Who gets too change it? How rigid/flexible?
-Difficult because all CDNs have different views
-MegaConstitution: Formal amendment of the constitution.
-A job not just for lawyers, but for politicians and even philosophers. Exceptionally emotional and
intense.
1867
-Not in BNA: Domestic amending formula. Amendable by the imperial Parliament. No rules within BNA
about how amendments to BNA would happen...it was taken for granted. The Empire was the guarantor
of the rights within the BNA. Some considerations about the success of an amending formula: Rule
about how you change the rules. What is the status of Qc in an amending formula? How does there
status reflect a vision of what this country is about? How flexible/rigid do you want the amending
formula to be? Arguably it should be fairly rigid (so that it can't always change) but it also has to be able
to respond to the needs of the people as things change (so some flexibility). Do you want unanimity (i.e.
how many vetoes does everyone get?).
-If you are a province or govt interested in proposing changes, you are offensive because you want to
propose changes, and so you don't want something that is too rigid. If you're defensive then all you care
about is having a veto yourself to throw down other people's proposals.
-Not having an amending formula at this time is no problem, until we start going down the road towards
political independence and experiencing wars and such.
1926
Balfour Declaration: Dominions are equal in status for external and domestic affairs.
Independence=need for domestic amending formula
1927
-Conference about amending formula with no conclusion
1931
-Statute of Westminster: Legislative independence of the dominions. CDN govt found exception saying
imperial govt will continue to be sole source of amending formula because we couldn’t come to a
decisions about a domestic one. Until the 1960's lots of discussions but no real change.
1960
Election of Lesage govt in Qc interested in seeking more decentralization within federation. Between
1960-65 discussions about finding a domestic amending formula. Proposal by Davey Fulton (min of
justice for Diefenbaker) later adopted by Pearson govt (Guy Favreau).1961: Fulton-Favreau Formula
proposed by Fulton: 1. would not change division of power (S.91 or 92) but any changes of these would
require unanimity (all provinces). If something only affected one or more province but not all, then
decisions could be restricted to these provinces. 2.7/50 rule. Govt of Saskatchewan did not like this
unanimity because they thought this would not allow for centralization on issues of social policies like
health care. Other provinces supported it. In 1964, Saskatchewan was on board but Qc was not because Qc could not seek more powers or decentralization (too rigid a formula). Qc could not get more power
because S.91+92 could not change, 3. even though it gave everyone a veto.
1971
-Trudeau becomes leader of liberal govt. His interest is in a Charter (entrenched)/bill of rights.
-1970: PQ Lesage rivals Bourassa (Lib) who is seeking more powers (decentralization) but also facing
political issue with rise of PQ. Now not only the issue of the amending formula but also even MORE
complex issues.
-Starting in 68-71, more intergovernmental discussion. In Victoria there is an agreement:
Victoria Charter of 1971. All premiers (Bourassa included) sign on. It contains a weak bill of rights (many
parts of our charter today...freedom of expression, religion, equality, language protection). Speaks of
entrenching supreme court within constitution (not just in the Supreme court act). There would be a
role for provinces making suggestions in electing justices. Amending formula: different from Fulton-
Favreau. Quebec was denied greater power. Suggest that if a govt has or has had 25% of population,
they would have veto (so ON and QC). Also at least 2 western provinces with at least 50% of western
population (so AB) and at least 2 Atlantic provinces (no pop requirements). This is not as rigid as
unanimity but less flexible than 7/50.
-Constitution can't be changed unless QC wants it to be. This is unjust to other provinces, which is why it
was required to have support from the West and East
-Changes to S.94(a) of BNA: this section gives fed govt a role in old age pensions. Issue: QC wanted to
have stronger footing on social policy issues and minimize fed govts role. Argument now that the
provinces would have upper hand in social policies (S.94)
-QC's view: Still not strong enough, and fed govt still has too big a role. Bourassa then decided to pull
out of Charter agreement, because of the social policy issue regardless of the fact that they had veto.
Caused intergovernmental problems became some viewed it as QC not willing to sign on. So the Victoria
Charter did NOT go through.
Know why QC left both proposals
1976-1980
-Conflict in Loyalties.
-PQ election (Bourassa loses and Levesque becomes elected).
-Rise of aboriginal political force. They become interested in fed politics.
-Rise of oil producing provinces because of oil shocks in the 70's. (AB and somewhat SAS)
-Now QC is seeking decentralization and as is the west to protect jurisdiction over natural resources.
-Trudeau: continues to be interested in constitutional change to achieve charter of rights.
-Another round of constitutional discussions. Talks of the Senate. Proposals from fed govt to create a
House of the Provinces.
1980
The first sovereignty Referendum: See the slide. 40.4% said YES, 59.6% NO. Trudeau's intervention:
promised he would engage in another round of constitutional negotiations (constitutional renewal).
-Another round of constitutional discussions: Amending formula, bill of rights, AB and SAS interested in
strengthening their position with respect to natural resources and their taxes, aboriginal people want to
anchor recognition of their rights, and mobilization of other constituencies (women, minorities etc.) A
lot of discussions in 1981-1982. Queen signs Canada Act.
Lecture 2
November-15-12
10:04 AM -Not able to come to consensus on what domestic amending formula should be
-What should be in an amending formula (and why it's so difficult to make one):
-A vision of what the country is fundamentally about. (especially regarding French/English...each
should get a veto)
-Not just accommodation between French and English, but also other provinces…
-Cannot just be two vetoes (political challenge). Difficult to accommodate both language and
equal provinces without choosing one over the other.
-If it's too rigid, it's hard to get anything done
-If too flexible, it does not give credit to what a constitution should be
-After referendum of 1980, the PM and Premier sat down to speak. PM wanted strong bill of rights.
Provinces felt this was a threat to them and their scope.
-Sept 1st conference of minister: what came out of It was that there was no unanimous decision of what
to do. PM decided he would go unilateral (seek unilateral amendment). What were the rules about
seeking such amendment: Rules and conventions:
-Legal Rules:
-Established at the imperial conference of 1930, the imperil parliament would not change
the status of dominions without the request/approval of the dominions. Statue of
Westminster: Imperial would only change the BNA or any other constitution upon the
request of the Dominion (from federal govt, not provinces)
-Convention (for provinces):
-Act 1:
-1980: No unanimity on consensus
-PM says he would get the HOC and Senate to give an address and he would go to the
Queen. Provinces are angry. The right to go to SC about a question is held by Fed govt, not
Prov ones. Provinces can send suggestions to court of appeal and once the court rules, the
appeals can then go to the SC. So Qc, MAN, and NF sent references to the court of appeals
saying: Can Pierre Trudeau actually do that? What is the law? To what degree is prov
support required under the law? To what degree has there been a convention about
provincial involvement? Courts say Trudeau had the right.
-While these questions move to SC, there is pressure on PM to open these discussion
beyond first ministers conferences. This starts parliamentary meetings on Charter Rights.
Arguments about what the bill of rights should include/look like. This gave incentive to
women and minorities to push for their rights. Aboriginal rights and rights to land.
-Fed govt has the right to royal assent, not provincial govts. But Trudeau had to send
proposal to HOC and Senate first
-Questions about whether or not what Trudeau did was right, and how the bill of rights
should look.
-Development of Gang of 8: Coalition of provinces against the PMs proposals. 2 that came
out were ONT and NB. PM wanted to break up the Gang of 8. in spring of 1981, QC is part of
Gang but Levesque makes strategic decision to agree to general amending formula of 7/50
without an explicit veto for QC, but in return he got promise by the provinces (other 7) that
there would be opt out of fed cost shared programs with compensation.
-Act 2:
-Court response:
-Referred to as Red light Green light decision. To the question of legalities (what is legal role
of provinces in constitutional amendment, is their support